J. Dinkins G. Grange is an attorney in Northeast Florida, helping his clients find solutions to their financial problems, which in some cases includes bankruptcy in some cases. This Blog contains general bankruptcy relevant information. His practice includes representing clients in various areas of civil litigation including Fair Debt Collection Practices Act, Chapter 7 and Chapter 13 bankruptcies, foreclosure defense and probate.

Saturday, September 15, 2012

These
are some, but by no means all of the affirmative defenses which may
or may not be applicable in your case. (The following was taken from
suethebanker.com)

1.
Standing.The
Plaintiff/Note Owner is not registered to do business in your state
and therefore unable to maintain this action and the court does not
have jurisdiction.

2.
Failure To Name Indispensable Parties.
The
complaint fails to join all indispensable parties, specifically the
loan originator and the loan servicer(s). Willey
v. W. J. Hoggson Corporation,
90 Fla. 343, 106 So. 408 (1925), contends that since the note and
mortgage involved were payable to a business trust, any action on
those instruments must be brought by all the members of the trust-not
just the trustees.

3.
Failure to Show Ownership of Note & Mortgage. The
complaint fails to adequately show the chain of title of the Note and
Mortgage (called a “Deed of Trust” in non-lien theory states)
demonstrating that Plaintiff /Note Owner is in fact the real party in
interest (i.e. owner of the Note) with standing to bring this action.

4.
Unclean Hands.Plaintiff/Note
Owner, or its predecessor(s) in interest, had unclean hands in their
course of dealing with Defendant/Property Owner. Further,
Plaintiff/Note Owner may have dealt in bad faith in wrongfully
refusing loan reinstatement or modification.

5.
Violation of TILA. Plaintiff/Note
Owner, or its predecessor(s) in interest, violated various provisions
of the Truth in Lending Act (“TILA”), which is codified at 15
U.S.C. section 1601 et seq. and Regulation Z section 226 et seq. by
inter alia:

a)
failing to deliver to the Defendant/Borrower two (2) copies of notice
of the right to rescind (with all of the pertinent statutory
disclosures);

b)
failing to properly and accurately disclose the “amount financed”;

c)
failing to clearly and accurately disclose the “finance charge”;

d)
failing to clearly and accurately disclose the “total of payments”;

f)
failing to clearly and accurately disclose the number, amounts and
timing of payments scheduled to repay the obligation;

g)
failing to clearly and accurately itemize the amount financed. In
the case of a secondary lien, the transaction was subject to TILA and
rescission rights since it was a consumer credit transaction
involving a lien or security interest placed on the
Defendant/Borrower’s principal dwelling, and was not a residential
mortgage as defined in 15 U.S.C. 1602(w), because the mortgage was
not created to finance the acquisition of the dwelling. As a result,
Defendant/Borrower is entitled to rescind the transaction and may
elect to do so.

6.
Violation of RESPA.Plaintiff/Note
Owner, or its predecessor(s) in interest, violated various provision
of the Real Estate Settlement Procedure Act (“RESPA”), which is
codified at 12 U.S.C. section 2601, et seq. by, interalia:

a) Failing to
provide the Housing and Urban Development (HUD) special information
booklet, a Mortgage Servicing Disclosure Statement and Good Faith
Estimate of settlement/closing costs to Defendants/Borrowers at the
time of the loan application or with three (3) days thereafter;

b) Failing to
provide Defendants/Borrowers with an annual Escrow Disclosure
Statement for each of year of the mortgage since its inception;

c) Giving or accepting fees,
kickbacks and/or other things of value in exchange for referrals of
settlement service business, and splitting fees and receiving
unearned fees for services not actually performed;

d) Charging a fee at the time of the loan closing for the preparation
of truth-in-lending, uniform settlement and escrow account
statements.

Violations
of HOEPA.
Plaintiff/Note
Owner, or its predecessor(s) in interest violated various provisions
of the Home Ownership Equity Protection Act (“HOEPA”) pursuant
to 15 USC § 1639 et seq. by failing to make proper disclosures to
Defendants/Borrowers and committed intentional predatory lending by
including prohibited terms. These violations provide an extended
three (3) year right to rescission and enhanced monetary damages for
the Defendants/Borrowers.

Extortionate
Extension of Credit.Plaintiff,
or its predecessor(s) in interest, are guilty of an extortionate
extension of credit, which is defined as “any extension of credit
whereby it is the understanding of the creditor and the debtor at
the time an extension of credit is made that delay in making
repayment or failure to make repayment could result in the use of
violence or other criminal means to cause harm to the person,
reputation, or property of any person.” In this case,
Plaintiff/Note Owner, or its predecessor(s) in interest, are guilty
of such an extension of credit because at the time of the loan, it
was understood that Defendants’/Borrowers’ failure to repay the
loan could result in the use of criminal means by the Plaintiff/Note
Owner to cause harm to Defendants’/Borrowers’ or others’
persons, reputation or property, including trespass on
Defendant/Borrower’s property, perjury, mail and wire fraud, and
Racketeer Influenced and Corrupt Organization (RICO) violations, as
long as Plaintiff/Note Owner, or its predecessor(s) in interest,
thought they would not be caught.

Fraud.The
alleged Note and Mortgage and other loan documents, were induced by
the fraud of the Plaintiff/Note Owner, or its predecessors in
interest and its co-conspirators, and are therefore void and
unenforceable. Specifically, the originator of the loan and its
co-conspirators made the following representations:

a)
Before the loan was made, the originator and/or its co-conspirators
(hereinafter referred to collectively as “Plaintiff/Note Owner, or
its predecessor(s) in interest”) represented to
Defendants/Borrowers that they had superior knowledge, information,
skill and ability to Defendants/Borrowers in making mortgage loans,
and that they would be looking out for the best interests of
Defendants/Borrowers in the financing process and, in effect,
protecting and promoting Defendants’/Borrowers’ benefit;

b)
Before the loan was made, the Plaintiff/Note Owner, or its
predecessor(s) in interest, represented to Defendants/Borrowers that:

(1)
Defendants/Borrowers would receive the best mortgage available (2)
that it would be a “good” loan, and (3) it would be of
substantial benefit to Defendants/Borrowers.

c)
The representations described in a) and b) above were made for the
purpose of inducing Defendants/Borrowers to enter into the loan
transaction.

d)
The representations were false and known by Plaintiff/Note Owner, or
its predecessor(s) in interest, to be false at the time the
representations were made and at the time the loan was made, in that:

(1)
The Plaintiff/Note Owner, or its predecessor(s) in interest, did not
have superior knowledge, information, skill and ability to
Defendants/Borrowers in making mortgage loans as represented or did
not use the same for the benefit and best interest of
Defendants/Borrowers;(2) The Plaintiff/Note Owner, or its
predecessor(s) in interest, did not look out for
Defendants’/Borrowers’ best interest or protect and promote
Defendants’/Borrowers’ benefit;(3) Defendants/Borrowers did
not receive the best loan available;(4) The loan was not a “good”
loan;(5) The loan was not in Defendants’/Borrowers’ best
interest, but rather was in the best interest and to the benefit of
the Plaintiff/Note Owner, or its predecessor(s) in interest;(6)
Defendants/Borrowers reasonably relied on the representations by the
Plaintiff/Note Owner, or its predecessor( s) in interest, to their
detriment.(7) The Plaintiff/Note Owner, or its predecessor(s) in
interest, failed to disclose all costs, fees and expenses; charged
excessive fees, gave kickbacks and made payments of fees to parties
not entitled to receive them, and failed to provide
Defendants/Borrowers with all disclosures required by law.(8) To
confuse, bamboozle and defraud Defendants/Borrowers, the
Plaintiff/Note Owner, or its predecessor(s) in interest intentionally
scheduled the closing with insufficient time at the closing for
Defendants to have the time to actually read the documents requiring
Defendants’ signature.

(9) Plaintiff/Note
Owner, or its predecessor(s) in interest, with the intent to
defraud, intentionally failed to provide the loan closing documents
in advance of the closing.

(10) The only parties who benefited
from the loan were the Plaintiff/Note Owner, or its predecessor(s)
in interest, and their service providers.

10.
Payment. Defendants/Borrowers
have made all payments required by law under the circumstances;
however Plaintiff/Note Owner, and/or its predecessor(s) in interest,
improperly applied such payments resulting in the fiction that
Defendants/Borrowers were in default. Defendants/Borrowers are
entitled to a full accounting through the master transaction
histories and general ledgers for the account since a dump or summary
of said information cannot be relied upon to determine the rightful
amounts owed.

Further,
the principal balance claimed as owed is not owed and is the wrong
amount, the loan has not been properly credited or amortized.
Additionally, Plaintiff/Note Owner, and/or its predecessor(s) in
interest, placed Forced Insurance on the property and is attempting
to collect on property taxes, insurance and fees not owed.

a)
Failing to promptly and/or properly pay taxes or insurance premiums
when due, so that the maximum tax discount available to
Defendants/Borrowers could be obtained on Defendants’/Borrowers’
property and so that insurance coverage on the property would not
lapse.

b)
Failing to provide Defendants/Borrowers with an annual statement of
the escrow account kept for payment of taxes and insurance.

c)
Failing to properly disclose at or prior to closing all costs, fees
and expenses associated with the loan;

d)
Charging excessive fees and making payments of fees to parties not
entitled to receive them;

e)
Obtaining a yield spread premium (YSP) based upon the “selling”
of a higher interest rate, and/or non disclosure of the range of
interest rates for which Defendants/Borrowers qualified.

Unconscionability.In
light of all of the foregoing defenses, and on the face of the
purported loan documents, the terms and circumstances of the Note
and Mortgage were unconscionable when made and were unconscionably
exercised, it is unconscionable to enforce the Mortgage by
foreclosure.

Rescission.
The mortgage and note which are the subject of this action have been
rescinded and therefore the mortgage(s) and note(s) are void.

Lack
of Jurisdiction. This
court lacks jurisdiction over the subject matter. It appears on the
face of the complaint that a person other than the Plaintiff/Note
Owner was the true owner of the claim sued upon at the time this
action was filed and that the Plaintiff/Note Owner is not the real
party in interest and is not shown to be authorized to bring this
foreclosure action.

15.
Failure to Provide FDCPA Notice.
Plaintiff brought this action without providing notice to
Defendants/Borrowers of Defendants’/Borrowers’ right to dispute
the debt, pursuant to the Fair Debt Collection Practices Act.
Plaintiff/Note Owner is required to notify Defendant/Borrower,
pursuant to 15 U.S.C §§ 1601, et seq., that Defendant/Borrower may
dispute the debt and Plaintiff/Note Owner is required to provide
verification of the debt.

Duress.

a)
Plaintiff/Note Owner alleges ownership of the note and mortgage in
question. b) Plaintiff/Note Owner is liable for actions of the
named mortgage company and/or its agents. c) The named mortgage
company, and/or its agent, used unjustified pressure to make
Defendants/Borrowers sign the mortgage and note, including telling
Defendants/Borrowers that they would be liable for the closing costs
if they did not go through with closing. d) Defendants/Borrowers
were harmed by the named mortgage company.

Failure
to State a Claim for Which Relief May Be Granted.

a) Plaintiff filed a claim to re-establish a lost note. b)
Plaintiff claims the right to re-establish such note under Fla.
Stat. §673.3091. c) Fla. Stat. §673.3091 provides only for
re-establishment of negotiable instruments as defined under Fla.
Stat. §673.1041. d) The note at issue is not a negotiable
instrument as defined under §673.1041 because it does not contain
an unconditional promise to pay and/or other requirements to qualify
as a negotiable instrument. e) Therefore Fla. Stat. §673.1041
does not apply to transfer or enforce the promissory note at issue
in this foreclosure action. f) Therefore, Plaintiff has failed
to state a claim for which relief may be granted.

Failure
to Timely Serve Complaint.
a) Complaint was filed on February 13, 2008. b) However,
Defendant was served on July 3, 2008. c) Pursuant to Fl. R. Civ.
Pro. 1.070(j), Defendant is required to be served within 120 days
after filing of the initial pleading. d) Plaintiff served
Defendant approximately 170 days after filing the initial pleading.

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Jacksonville Bankruptcy Attorney -- J. Dinkins G. Grange, Esquire

I am a consumer bankruptcy attorney
helping people with their financial situations. As a bankruptcy lawyer, I help people find
various alternatives towards handling their financial problems, and
if needed, I can provide legal assistance to consumers seeking relief
under the bankruptcy code. I can be contacted by email at dgrange@grangelaw.org. I am available by appointment
during the week and most evenings.

I am located in Green Cove Springs on North Street, and Middleburg on Palmetto Street.

I am a member of the National
Association of Consumer Bankruptcy Attorneys (www.nacba.org),
Jacksonville Bankruptcy Bar Association, American Bar Association,
Florida Bar, and Jacksonville Bar Association.

I have also been designated a debt
relief agency by Congress and the United States Supreme Court and I
help clients file for bankruptcy relief under the bankruptcy code.

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We are a debt relief agency. We help clients file for bankruptcy relief under the Bankruptcy Code. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This blog site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.